The scandalous Epstein-Acosta plea deal: What can be done?

David Von Drehle of the Washington Post does the best job I’ve seen of capturing the scandalous behavior of Alex Acosta in the Jeffrey Epstein case. Von Drehle begins by providing context:

The aim of the victims’ rights movement, which arose in the 1970s and has swept through every state in the union and changed federal laws in the years since, is often summed up simply: Crime victims have the right to be “informed, present and heard.”

He then turns to Acosta:

All these rights were trampled by Alexander Acosta, formerly the U.S. attorney in South Florida and currently U.S. secretary of labor, when he struck a secret deal with wealthy sex offender Jeffrey Epstein to shield Epstein from federal investigation and prosecution.

Though Acosta was in possession of a 53-page draft indictment charging that the well-connected financier was a serial child molester, he instead immunized Epstein — and any possible co-defendants — in exchange for a comparatively trifling plea deal in state court.

To make matters worse:

Acosta’s representatives misled Epstein’s young victims by telling them the FBI was hard at work on their cases and asking them to “be patient.” Even when a handful of the victims — who may number in the hundreds — learned at the last minute that Epstein was entering a guilty plea and receiving a slap on the wrist, they still weren’t told that the federal case was being dropped.

And because these victims were not informed, they were not present in court to oppose the deal and could not be heard by the sentencing judge protesting this disgraceful sham.

Von Drehle notes that the estimable Paul Cassell — law professor, former judge and prosecutor, and leading expert on victims’ rights — has petitioned a federal judge in Florida to invalidate Epstein’s deal with Acosta on grounds that it violated the Crime Victims’ Rights Act (CVRA) of 2004. That’s a welcome development of which I was unaware.

The undisputed facts of this case prove that, rather than forthrightly discharging its obligations to numerous child sexual assault victims, the Government chose to enter into a secret deal with the man who had victimized them.

Perhaps before Congress enacted the CVRA, such outrageous behavior could escape a judicial response. But now that the CVRA is the law of the land, the Court is obligated to take all necessary steps to ‘ensure’ that the victims’ rights are protected.

In response, the government contends that Acosta satisfied the law’s requirement to “confer” with victims when federal authorities handed them a phone number for the FBI. Von Drehle correctly characterizes the response as “lackluster.” But what else could it be? Surely, the attorneys who prepared the response were uncomfortable, at a minimum, with Acosta’s conduct.

Acosta tried to defend the plea deal in 2011. He complained that the all-star defense lawyers were “more aggressive than any which I, or the prosecutors in my office, had previously encountered.” They dug into the personal lives of Acosta’s lawyers looking for “peccadilloes.” Yet, said Acosta, he didn’t back down.

Thus did Acosta pat himself on the back for standing up to hyper-aggressive adversaries and obtaining what he continued to insist was a good deal for the government. The chutzpah behind this argument takes one’s breath away.

Acosta also argued that some of the evidence against Epstein emerged after the plea deal. “Many victims have since spoken out,” he said, and “physical evidence has since been discovered.” This is chutzpah on top of chutzpah. As Von Drehle notes, Acosta assiduously avoided hearing from the victims at the time. And the physical evidence he refers to might well have been found if Acosta had not prevented federal investigators from continuing to look for it.

Unfortunately, the plea deal probably can’t be undone. A deal’s a deal, and Epstein apparently complied with its extraordinarily lenient terms (under which he was able to go about his business during the day and take weekend trips outside of Florida).

However, the court should still declare the deal illegal. I hope that by then, Acosta will have stepped down or been removed from his job as Secretary of Labor. Given Acosta’s arrogance, fully on display in his 2011 defense, removal may be the more realistic of the two outcomes.